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A British Bundesrat?

Colin Kidd on how to balance ‘England’s House of Commons’

Whatever the outcome of the independence referendum in Scotland this September, it will be followed by an extensive inquest into the workings of the British constitution. In some quarters inquiries have already started. The Political and Constitutional Reform Select Committee of the House of Commons issued a report in March last year titled Do We Need a Constitutional Convention for the UK? The Liberal Democrats’ Home Rule and Community Rule Commission has advocated ‘home rule all round’ in a new federal union. A similar call has come from David Melding, the Conservative deputy presiding officer of the Welsh Assembly, in The Reformed Union: The UK as a Federation, published last year; while Conservatives at Westminster, including Kenneth Baker, Malcolm Rifkind and members of the so-called Democracy Taskforce set up by the Tories in opposition and headed by Ken Clarke, have over the past decade proposed various means of ironing out post-devolutionary wrinkles in the British political system. So too has the McKay Commission (2012-13), chaired by a former clerk of the House of Commons. Meanwhile there have been major investigations in Scotland (the Calman Commission of 2007-8) and Wales – the Richard Commission (2002-4), the Holtham Commission (2007-10) and the Silk Commission (2011-14) – into the broader operation of devolution and the funding mechanisms that support it.

Anxiety has focused not only on relations between Westminster and the constituent nations of the United Kingdom, but also on the appropriate remits of devolved and local government. For devolution, it transpires, does not always entail subsidiarity. The Labour Party in Scotland launched its own Devolution Commission, whose interim report in the spring of 2013 plausibly invoked the cause of local government against the centralising tendencies of Scotland’s SNP administration. By the same token, the councils of Orkney, Shetland and the Western Isles last year formed an alliance to consider the implications of constitutional change for the remotest parts of Scotland. The diktat of an uncomprehending Edinburgh three hundred miles away can seem just as distant and threatening as rule from London.

The unintended implication of this raft of commissions, inquiries and initiatives is to reinforce the doubts raised by nationalists of one sort or another about our constitutional arrangements. Is the United Kingdom – as the SNP alleges – a failed state? Alex Salmond’s unavowed southern cousins – Ukip’s English base and the English nationalist wing of the Tory Party – take a similar tack: is the British political system sustainable in its current form, with devolution for all and sundry except the English nation itself, the exploited milch-cow of the Union?

There is a deeper, more enduring irony here. Notwithstanding the current commotion about the prospects for enhanced devolution, federalism and an ill-defined devo-max, the constitution we have remains that of a Greater England. Strangely enough, the Treaty of Union which is constitutive of the British state enjoys no special constitutional standing. Our constitutional experts don’t seem to be much good at parsing what – it should be clear after four decades of debate about the Scottish Question – is manifestly a partnership founded on an international treaty. Yet from England’s enduring solipsism derive many of the constitutional problems which beset the United Kingdom. Everybody knows the canard that the UK has no constitution, because it’s not all written down in one place like the American constitution. Understandably enough, given the jibes the subject attracts, jurists and political scientists have over the years fixated on the question of what makes the British constitution a constitution. Rarely, if ever, have they confronted the less obvious question of what makes the British constitution British.

When did the English state become British? And what at that point became of the English constitution? In what ways was it transformed by the Union of 1707 which created a new British state? Such questions are rarely answered in the literature of British constitutional interpretation. It’s not that the Union is singled out deliberately for disregard but rather, that the impenetrable arcana and demanding idioms of British constitutional scholarship have allowed an instinctive, unreflective and arrogant anglocentricity to obscure the real nature of the constitution. The Union negotiated and ratified in 1706-7, which, one might suppose, gives our constitution being, lies – unnoticed – in its innermost recesses.

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Letters

Colin Kidd furnished a whole exhibition hall with bright and intriguing constitutional ideas (LRB, 17 April). But he left a few elephants sulking in corners. He sets great store by the 1707 Treaty of Union between England and Scotland, which is held to have created the British state. But let’s say it loudly and clearly: that treaty – with its form of union – is dead. We can date its fall precisely, to 12 May 1999, when the devolved legislature met in Edinburgh. It fell when Winnie Ewing ignored Donald Dewar’s entreaties and said: ‘The Scottish Parliament, adjourned on the 25th day of March 1707, is hereby reconvened.’

It was as if Glasgow had gone ahead with its plan to blow up the Red Road towers. Almost silently, the huge old architecture of the Union sank into itself and vanished. Dust blew about for a few years. But now Scotland finds itself standing in the open air, staring around at a landscape of choices. Devolution, in other words, has killed the Union as we all knew it. What remains is not the 1707 arrangement, but a quite different form of union: a changeable, constantly loosening association with no hard core. As Janan Ganesh writes in a cruelly intelligent article in the Financial Times, devolution has no reverse gear: ‘Independence may be averted in September, but the trend of history is unmistakable.’

The old treaty was tattered with violations, anyway. In 1988, for instance, I refused to register for the poll tax on the grounds that its application to Scotland alone breached Article 18 of the treaty, and I joined an action at the Court of Session to get it declared illegal. We failed – but only because, as Colin Kidd says, ‘there were no constitutional protections within the Union-state.’ No constitution, because England, specifically, never developed a concept of supreme law. No protection, because the Treaty of Union was not ‘justiciable’.

Kidd should surely show more outrage at the survival of parliamentary sovereignty, that preposterous old doctrine which still obstructs liberty in the British state. For one thing, it blocks the way to his vision of a ‘federal’ upper chamber of the regions. For another, it isolates the UK on an archaic English Sonderweg – a top-down monarchist power concept shared by no other nation in Europe. In 1689, England simply swapped royal absolutism for parliamentary absolutism. But if the subsequent British state had been able to adopt a ‘normal’ Enlightenment constitution, the Treaty of Union would have been one of its pillars. Now it’s too late.

Neal Ascherson
London N5

It simply isn’t true that Scots ‘were made the guinea pigs of Thatcher’s poll tax’, as Colin Kidd writes. The Scottish Tories enthusiastically embraced the poll tax to get them off the hook of rates revaluation in Scotland in 1989. See where it got them. As for suggesting that the House of Lords be turned into a German-style Bundesrat representing the nations and regions of the UK: classically, too little and too late – by about a hundred years.

Colin Kidd advocates correcting the ‘democratic deficit’ in our constitution by transforming the House of Lords into a ‘German-style Bundesrat, with a membership drawn from the governments of the nations and regions of the United Kingdom’ (LRB, 17 April). But the English ‘regions’, unlike Scotland, Wales and Northern Ireland, have no elected governments, and show no signs of wanting them. Such regional institutions as exist lack the democratic legitimacy of the devolved bodies in the non-English parts of the UK. In consequence, a Bundesrat based on territory, as advocated by Kidd, would introduce the West Lothian question into the upper house: Scottish members would be able to vote on English laws but the English members would not be able to vote on Scottish laws on domestic matters, which have been devolved to the Scottish Parliament. A territorial upper house, therefore, far from helping to hold the UK together, as Kidd hopes, would probably add momentum to the centrifugal forces threatening to pull it apart.

The imbalance in the British constitution, to which Kidd draws attention, is an inevitable consequence of asymmetrical devolution resulting from the fact that England does not want devolution. The asymmetry disadvantages, not Scotland, as Kidd suggests, but England. It is the price England pays for keeping Scotland within the Union.

Vernon Bogdanor
King’s College London

In pointing out the supremacy of European constitutional law over British, Scots and English laws, Colin Kidd puts his finger on a sore point, for no country can be ‘independent’ while remaining in the European Union or, indeed, in Nato. Neither the SNP nor the other political parties likely to win enough votes to control future Scottish governments intends to leave either organisation. The essence of European and Atlantic co-operation is that countries pool their sovereignty for certain agreed purposes, as John Major understood very well when he negotiated the Maastricht Treaty in 1991-92.

That is why the question being put to us in Scotland on 18 September is a rather silly one. We should have been asked how much Home Rule we’d like if we don’t want outright ‘independence’. The majority answer would certainly have been ‘considerably more than we have at present’, in particular more control over taxation, energy policy and welfare. But David Cameron would not agree to the Scottish government’s request for ‘devo max’ to be an option on the ballot paper.

No one in the Yes campaign is suggesting we end the currency union, the customs union or the fiscal union, let alone the social union. What they propose is that we end an unsatisfactory parliamentary union that no longer serves Scotland’s best interests. The so-called ‘union of the crowns’ would continue (despite the fact that it never existed: what actually happened was that the King of Scots inherited the English crown, 104 years before the union of parliaments, and the crowns are still separate, though worn by the same distant relative of King James VI and I).

I am bemused by Kidd’s suggestion that Ukip and the ‘English nationalist wing of the Tory Party’ are Alex Salmond’s ‘unavowed southern cousins’. This seems unfair, and sounds like a smear. Unlike Ukip and the Tory Little Englanders, the SNP is not a xenophobic, right-wing party. It is pro-immigration, for example. There were certainly a few nutters among the Nat ranks in the 1930s, as Gavin Bowd reminded us in his recent book, Fascist Scotland, and there were some lingering nasties on the fringes into the 1980s, but they were shown the door a long time ago. The SNP is now a centre-left, social democratic party in the European mainstream. Indeed, many former Labour voters support the SNP because it at least tries to put Labour Party policy into practice, something that drives the Scottish Labour leadership into paroxysms of fury.

Kidd suggests that we reform the House of Lords so that it resembles the German Bundesrat and becomes an elected second chamber, with powers to revise controversial legislation and restrain the enthusiastic excesses of the English-dominated House of Commons. This is a very attractive proposition. However, if even people like me (an Anglo-Scots Labour supporter for 35 years until 2001 and a Labour parliamentary candidate three times over) are intending to vote Yes, then I fear this constitutional carrot may not be in time to save the union of parliaments to which David Cameron is so passionately, and so suddenly, devoted.

Jonathan Wills
Bressay, Shetland

Neal Ascherson maintains that the Treaty of Union died when Winnie Ewing said: ‘The Scottish Parliament, adjourned on the 25th day of March 1707, is hereby reconvened’ (Letters, 8 May). In the event of a Yes vote in the referendum this September, any legislation ratifying Scottish secession will necessarily contain provisions referring to and nullifying the 1707 Treaty of Union. And, contra Ewing, the Parliament meeting in Holyrood now has no continuity with the nobility-dominated legislature which met further up Edinburgh’s Royal Mile in the 18th century. The 1998 Scotland Act makes this clear in its opening line: ‘There shall be a Scottish Parliament.’ This is a new body, not a reassembled one, and it was set up by the UK Parliament, not a sovereign body in its own right. What Ascherson’s citing of Winnie Ewing really tells us is not that the Treaty of Union is dead, more that Scotland is failing to disprove Ernest Renan’s observation that ‘historical error is an essential factor in the creation of a nation.’